Tenant not moving after handing his notice

[rick321]

Hi

I let my property to a family on 12 month AST, through an agent. They handed in their notice to vacate 2 months ago and are due to vacate the premises on Thursday. Relationship between tenants, agent and myself have deteriorated over the past month ( they are making complaints about minor repairs which were not carried out, etc, asking for compensation) and I am starting to worry they may not move out as promised.

What can I do? I was told by a friend that if they do not leave as promised, they will be trespassers and as such I can forcibly remove them. Is this correct?

Thanks for your help.

Rick

[rebel11]

Hi ric

 

Welcome to CAG

 

Have a read of links 10 and 11

in my signature, I appreciate

that your not a tenant.

[Ed999]

My comments only apply if the premises are entirely within England and Wales, and you granted a shorthold tenancy (under which the tenant - and his spouse/partner/children, if any - has exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and the tenant was over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Questions for New Posters

 

Will you please provide the essential information requested in the "sticky" thread Questions for new posters.

 

 

Criminal Offences: Landlord

 

Read the FAQ - Shorthold Tenancy - possession, eviction and notice

 

That FAQ explains what criminal offences the landlord will commit if he evicts a tenant from residential premises without a court order.

 

That FAQ also explains how to lawfully terminate a tenancy, by giving notice of termination to the tenant and thereafter - if the tenant fails to vacate by the due date - obtaining a court order.

 

See also: Protection from Eviction Act 1977

[mariner51]

When did the 12 month fixed term end? Any break clause included?

[rick321]

Hi

 

Sorry if I posted incorrectly, I am new to this site and only found it through Google.

 

Rent is £1200 pcm.

Written AST. Standard form supplied by Agents.

Tenancy began in August 2010 for 12 months and option to give notice in 6 months.

Notice was given by email on 13 May and then handed in writing , not by post.

 

I always understood once tenant has given his notice he has agreed to terminate the agreement and is legally obliged has to vacate the premises that day.

 

There is also a clause in our agreement that entitles me to enter the property, without permission, after 14 days of non-payment.(Statutory rights not affected) It seems this clause is meaningless?

 

Agent is totally useless. I always had the impression that they will handle any problems. Since I will not be using them to re-let the property they have become even less interested.

 

Having looked a the useful links you guys have posted it seems:

 

a) the notice to vacate is almost meaningless, and if the tenant refuses to move , that they are not only not trespassing and cannot be forcibly moved , but I have no choice but ot issue a s21(?) and give a 2 month notice asking them to vacate. and if they don't then I have to ask for an eviction order? And that I will be out of pocket for rent owed if I get an accelerated eviction order?

How can the law be so biased?

Perhaps I am looking at worst scenarios and perhaps it will be ok, but wish I had thought about this more and not taken agent's 'implied ' assurances, a year ago.

Any advice would be much appreciated.

Thanks

Rick

ps I realise this is all informal advice, just want to hear as many different opinions regarding my options, thanks again,

Edited July 10, 2011 by rick321

[Ed999]

My comments only apply if the premises are entirely within England and Wales, and you granted a shorthold tenancy (under which the occupier - and his spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and the tenant was over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Fixed Term: Ending the Tenancy

 

The tenancy does not end until the final day of the fixed term (the agreed end date). The tenant is liable for the rent due until that date.

 

But the tenancy ends automatically when that fixed term does end. No notice is required of the tenant (no notice at all), as long as he moves out - and returns all the keys - on or before the final day of the fixed term (the agreed end date).

 

The tenancy can only be ended early if the tenancy agreement contains a "break clause" (an explicit right to end the tenancy early by giving notice), and if a valid written notice to end the tenancy early is given under that clause. But in order to be valid the notice must comply with all the conditions stated in that clause.

 

If the tenant does not move out before the anniversary of the start of the tenancy, a statutory periodic tenancy arises. To end this periodic tenancy, the tenant must then give one period's notice in writing (one month's notice, if the rent is due monthly), expiring on the last day of a rent period. But if the tenancy agreement requires a longer period of notice, the tenant must give the longer notice required by the agreement.

 

 

What steps you might be entitled to take if the tenant does not move out will depend on whether you are owed any arrears of rent, and if so how much the arrears currently are, and on whether you are holding a rent deposit, and how much it is, and whether you have protected it. Please state that information here; and please state the date the tenancy started.

[Aequitas]

There are two disitnct things: (i) how a tenancy can be brought to an end and (ii) when the landlord is entitled to possession.

 

If:

 

(a) the tenancy being periodic the tenant serves a notice to quit

 

or

 

(b) the tenancy being a fixed term the tenant serves a notice validly exercising a right to break

 

then, when the notice expires the tenancy, whether assured or not, comes to an end. However, if the tenant remains in occupation after the tenancy ends the landlord must obtain a court order to evict the tenant. There is no need for the landlord to serve any sort of notice before applying for an order for possession. If the landlord demands or accepts rent for any period after the notice expires that may have the effect of starting a new periodic tenancy.

 

There is also a clause in our agreement that entitles me to enter the property, without permission, after 14 days of non-payment.(Statutory rights not affected) It seems this clause is meaningless?

 

Not entirely. If and so long as the tenancy is assured a landlord can only bring it to an end by court order. Where the tenancy is not assured and the tenant is not in occupation (that means has vacated - not nipped out to the shops) you can re-enter. Where the tenant remains in occupation you must get an order for possession - see above.

[rick321]

Many thanks; by the way the property is in England.

12 month contract, option to give 2 months’ notice after 6 months, agreement signed on 15 August 2010.

 

Notice given by tenant 13 May. Sent by email, followed by hard copy delivered by hand to agent on 14 May and then a hard copy delivered to me early July. I just checked my agreemetn regarding notice per your suggestion .Agreement states notice should have been delivered to me. I thought since this was accepted by the agent and so I decided to accepted it as well and have emailed the tenant to say I have accepted his notice to noitce to vacate dated 14 May. In retrospect this appears to have been very stupid on my part.

 

No rent owed. There is one month's rent damage deposit held in a scheme, held by a third party in an account ( is this what you mean by protected?) and I understand there is a check out inspection on the last day.

So what do I do if I turn up and tenant refuses to hand over keys.

Thanks again for all your help.

Edited July 10, 2011 by rick321

[rick321]

There are two disitnct things: (i) how a tenancy can be brought to an end and (ii) when the landlord is entitled to possession.

 

If:

 

(a) the tenancy being periodic the tenant serves a notice to quit

 

or

 

(b) the tenancy being a fixed term the tenant serves a notice validly exercising a right to break

 

then, when the notice expires the tenancy, whether assured or not, comes to an end. However, if the tenant remains in occupation after the tenancy ends the landlord must obtain a court order to evict the tenant. There is no need for the landlord to serve any sort of notice before applying for an order for possession. If the landlord demands or accepts rent for any period after the notice expires that may have the effect of starting a new periodic tenancy.

 

 

 

Hi . the tenancy is assured, with a option to end after six months. As mentioned below, tenant gave notice to agent by email, handed notice to agent , and alos handed notice dated May 14 to me in July. Although agreement states notice should have been delivered to me, it was accepted by the agent and so I decided to accepted it as well and have emailed the tenant to that effect. I t seems that I stupidly have agreed to back dated notice to vacate. Although as long tenant leaves I am not bothered by the notice period. Can he change his mind and claim 2 months’ notice period begins from when he delivered his letter to me?

 

 

Not entirely. If and so long as the tenancy is assured a landlord can only bring it to an end by court order. Where the tenancy is not assured and the tenant is not in occupation (that means has vacated - not nipped out to the shops) you can re-enter. Where the tenant remains in occupation you must get an order for possession - see above.

 

So since this is an assured tenancy, does this mean regardless of this clause, I cannot enter the property after 14 days, unless it is vacated? But I can apply for court order on 13 July if the tenant does not move out? How long does this process take normally and will it cost a lot.

Thanks again

[rick321]

Hi . the tenancy is assured, with a option to end after six months. As mentioned below, tenant gave notice to agent by email, handed notice to agent , and alos handed notice dated May 14 to me in July. Although agreement states notice should have been delivered to me, it was accepted by the agent and so I decided to accepted it as well and have emailed the tenant to that effect. I t seems that I stupidly have agreed to back dated notice to vacate. Although as long tenant leaves I am not bothered by the notice period. Can he change his mind and claim 2 months’ notice period begins from when he delivered his letter to me?

So since this is an assured tenancy, does this mean regardless of this clause, I cannot enter the property after 14 days, unless it is vacated? But I can apply for court order on 13 July if the tenant does not move out? How long does this process take normally and will it cost a lot.

[rick321]

I am very sorry, I was trying to reply with quotes but seem to have edited incorrectly, sorry for the messy thread.

[Ed999]

If you have read the tenancy clause which allows the tenant to give you a break notice, and you are satisfied that the tenant has complied with all of the conditions stated in that clause, then the notice given by the tenant has the effect of ending the tenancy on the date stated in it.

 

The tenant is most unlikely to remain, if he has gone to the trouble of giving notice.

 

 

 

 

So since this is an assured tenancy, does this mean regardless of this clause, I cannot enter the property after 14 days, unless it is vacated?

 

 

 

That is correct.

 

 

 

 

But I can apply for court order on 13 July if the tenant does not move out?

 

 

 

The tenant's break notice has only ended the fixed term tenancy.

 

Once the fixed term has ended, if the tenant does not vacate the premises a statutory periodic tenancy arises, under section 5(2). You would have to also end the statutory tenancy.

 

Section 21(4) requires you to terminate that periodic tenancy by giving not less than 2 months notice. Where a notice is given to the tenant AFTER the expiry of the fixed term (i.e. during the periodic tenancy) it must expire on the last day of a period of the tenancy, as section 21(4) requires that:

 

• http://www.nicmadge.co.uk/assured_shorthold.php

Edited July 10, 2011 by Ed999

[Ed999]

How long does this process take normally

 

 

 

It is two months notice, then apply to the court. The court order will come through in a minimum of one month after that, if there are no errors in your application. Then apply for a court bailiff to evict the tenant.

 

For example, a common error is giving an invalid date in the section 21 notice. It can be dangerous to specify a calendar date in a section 21(4) notice, as the date specified might be invalid.

 

The safest approach is to use the form of words approved by the Court of Appeal in Lower Street Properties Ltd v Jones [1996] 2 EGLR 67, CA:

 

"TAKE NOTICE that possession is required, by virtue of section 21(4) of the Housing Act 1988, of the dwellinghouse known as [address] at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice."

 

 

Use a Solicitor. The notice procedure and court application are a legal minefield.

Edited July 10, 2011 by Ed999
Spelling

[rick321]

Thank you all for your patience and help.

 

So the Notice stands even it was handed to me later. Good so far.

But if he changes his mind, and he can, then the tenancy becomes a periodic tenancy.

Where I have to give a 2 months notice to terminate it. And then apply for an eviction which may take another month at least, if the application is correct. So we are looking at min of 3 months?

Also the fact that they are a family make it more difficult to get an eviction order?

[Ed999]

So the Notice stands even it was handed to me later. Good so far.

 

 

You're the landlord. So even if the notice is bad, and riddled with legal errors, it's valid if YOU say it is. It's you who'd have to apply to the court to invalidate it, so if you're happy with it no one's likely to challenge that.

 

 

 

But if he changes his mind, and he can, then the tenancy becomes a periodic tenancy.

 

 

True. But chances are he'll just move out, because he's the one who gave notice ending the tenancy.

 

 

 

Where I have to give a 2 months notice to terminate it. And then apply for an eviction which may take another month at least, if the application is correct. So we are looking at min of 3 months?

 

 

Yes. But if he's always been a good tenant, chances are that he'll just go on paying the rent, as before.

 

But most likely he'll just move out on the date he said. He'll have some other accommodation already lined up.

 

 

 

Also the fact that they are a family make it more difficult to get an eviction order?

 

 

No. The section 21 procedure is very even handed. The tenant doesn't get extra rights depending on some hard luck story. He may get special treatment under section 8, but not if you apply under section 21.

[rick321]

Thank you all for your help. He has been a good tenant for most of the time, but he has bee making noise about compensation lately. Looks like I have been worried for no reason. Will keep you posted.

I must say I am more disgusted with the letting agents. I really felt they would help me in case of any problems. But when I went to see them , they wouldn't even give me more than 5 minutes, claiming they had an appointment. Not sure what I paid them 10% for.

Rick

Edited July 10, 2011 by rick321
spelling

[mariner51]

Rick321, you stated "There is one month's rent damage deposit held in a scheme, held by a third party in an account ( is this what you mean by protected?)"

Not really, can you clarify in which approved deposit scheme the deposit is held?

Do you refer to the approved DPS scheme or LA's own deposits account which may be covered by one of the 2 Ins-based approved schemes.

Also just protecting the deposit in an approved scheme is no longer sufficient. The T must be in receipt of the 'reqd info' - name of approved scheme, account name/account ref no., BEFORE a valid s21 can be issued/become effective.

I would quiz LA closely on this point and get written assurance that deposit is properly protected, scheme name, account no and that T has been provided the same info.

Remeber LA is only your agent, you are ultimatley resp in Law for ensuring deposit is protected in approved scheme.

[rick321]

Rick321, you stated "There is one month's rent damage deposit held in a scheme, held by a third party in an account ( is this what you mean by protected?)"

Not really, can you clarify in which approved deposit scheme the deposit is held?

Do you refer to the approved DPS scheme or LA's own deposits account which may be covered by one of the 2 Ins-based approved schemes.

Also just protecting the deposit in an approved scheme is no longer sufficient. The T must be in receipt of the 'reqd info' - name of approved scheme, account name/account ref no., BEFORE a valid s21 can be issued/become effective.

I would quiz LA closely on this point and get written assurance that deposit is properly protected, scheme name, account no and that T has been provided the same info.

Remeber LA is only your agent, you are ultimatley resp in Law for ensuring deposit is protected in approved scheme.

 

Hi Mariner

Thanks for this.

I have looked through documents the best I can. All I have is a check –in report. A pamphlet describing a Tenancy Deposit Scheme with some phone numbers in the back. I can’t see an account number or ref no. Again I was assured by the LA all was in order and I took their word.

Are you saying I may not be able to issue a valid s21 if the info mentioned is not passed on to tenant.?

Where would I find ref no. and account numbers.Is is to late to pass on to tenant?

 

Thanks again

Rick

Edited July 10, 2011 by rick321
additional question

[mariner51]

Rick, no it is not too late to pass on required info of deposit into an aproved scheme, provided it is served before a s21 is issued..

Served = deemed received (allow 2 working days from date of posting by First Class post) for service. Get free Cert of Posting from PO as proof of posting.

Obvious place to start is the LA. Get them to confirm in writing, the deposit is in an 'approved' scheme and date reqd info was sent to T OR

ring a number on the leaflet, quote address of rented property, name of T & name/location of LA and get the account info yourself (poss DPA conflict so identify yourself as the LL) OR look up deposit scheme online/Google Tenant Deposit Protection schemes and look for a .gov.uk site/ google name of scheme supplied.

If you wish to remain a LL I suggest you join the National / Residential landlords association ~£75 pa. Both offer online training modules and a free prof helpline for members.

There are conscientious LAs out there, all needing to make a profit, so I would suggest vetting each one as closely as any T (diff criteria)

You appoint them to act as YOUR agent, ultimately YOU carry the can & costs.

[rick321]

Rick, no it is not too late to pass on required info of deposit into an aproved scheme, provided it is served before a s21 is issued..

Served = deemed received (allow 2 working days from date of posting by First Class post) for service. Get free Cert of Posting from PO as proof of posting.

Obvious place to start is the LA. Get them to confirm in writing, the deposit is in an 'approved' scheme and date reqd info was sent to T OR

ring a number on the leaflet, quote address of rented property, name of T & name/location of LA and get the account info yourself (poss DPA conflict so identify yourself as the LL) OR look up deposit scheme online/Google Tenant Deposit Protection schemes and look for a .gov.uk site/ google name of scheme supplied.

If you wish to remain a LL I suggest you join the National / Residential landlords association ~£75 pa. Both offer online training modules and a free prof helpline for members.

There are conscientious LAs out there, all needing to make a profit, so I would suggest vetting each one as closely as any T (diff criteria)

You appoint them to act as YOUR agent, ultimately YOU carry the can & costs.

 

Apologies , I found a TDS scheme certificate with a Tenancy UID code and I am told by LA this was sent to T. No account number but I assume this is ok.

thanks again

Rick

[rick321]

Hi

I just had a very disturbing call from tenant. He has told me due to change of circumstance he cannot move out. I ask him how his situation has changed and he would not say. Also he has mnetioned he cannot pay full rent right now but has offered a partial rent of £400 pcm !. I got very angry on the phone and he put the phone down,. What do I do. Does the s21 still apply. Do I still have to wait 2 months even if he can't pay rent.

How much would it cost to have a solicitor look at this. Any advice would be much appreciated.

Rick

[Aequitas]

The tenant's break notice has only ended the fixed term tenancy.

 

Once the fixed term has ended, if the tenant does not vacate the premises a statutory periodic tenancy arises, under section 5(2). You would have to also end the statutory tenancy.

 

This would not appear to be the position. Section 5(2) says:

 

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

 

(a) [refers to court orders]

 

(b ) a surrender or other action on the part of the tenant,

 

then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

 

Applying paragraph (b ), if the tenant has served a valid notice exercising a right to break, then when the fixed term ends no statutory tenancy arises if the tenant remains in occupation.

[rick321]

Thanks Aequitas

He has confirmed he will not be moving out. And he will only be paying reduced rent I called couple of solicitors and they are asking for a lot of money just to look at this.

So what you are saying is that there is no tenancy if he has ended the fixed term.?

So how can I remove him. Does he have any statutory rights?

Any opinions would be much appreciated.

Rick

Edited July 12, 2011 by rick321
spelling

[Ed999]

Section 5(2) says:

 

(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of—

 

(a) [refers to court orders]

 

(b) a surrender or other action on the part of the tenant,

 

then ... the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and ... his right to possession shall depend upon a periodic tenancy arising by virtue of this section.

 

 

 

I understand the meaning which you are suggesting for section 5(2).

 

However, there are three problems. Firstly, I'm not aware of any decided case which meets the present facts, or which supports your interpretation, i.e. that no notice need be given by the landlord.

 

Secondly, I'm worried about the effect of section 5(5) -

 

 

(5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy—

 

(a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or

 

(b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

 

the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect.

 

 

 

Thirdly, I'm concerned by your suggestion that the tenant's break notice has brought the tenancy to an end. That seems to me to be impossible, because of section 5 (1A) -

 

 

(1A) Where an order of the court for possession of the dwelling-house is obtained, the tenancy ends when the order is executed.

 

 

We are about to suggest that the landlord seek such an order, in the county court. Only the granting of the order and its execution will end the tenancy.

 

 

I think the landlord needs to consult a Solicitor, who maybe will have experience of this uncommon state of affairs, before taking the extremely unusual - and, in my opinion, risky - step of beginning a possession claim without serving a notice under either section 8 or section 21.

 

I do not feel that in the present circumstances, i.e. a tenant in arrears, it would be helpful to encourage the county court judge to throw out the claim because the landlord can't show compliance with either section 7 or section 21.

 

I have a gut feeling that that's what would happen. The first thing the judge will ask is: 'Are you basing your claim on section 7 or on section 21?' And if the landlord gives no notice to the tenant, the landlord isn't basing his claim on either!

 

 

It seems to me that it would be prudent for this landlord, who is immediately faced with non-payment of rent, to base his claim on a section 8 notice. Only a fortnight's notice need be given. And he can give that notice, by hand, the day after the rent is due (this Friday?), then issue a section 7 court claim a fortnight later.

 

He would claim on ground 10, a discretionary ground for possession.

 

Ground 10: That some rent was in arrears, both when the landlord gave the section 8 notice and when the court proceedings were begun.

 

Depending on the advice of his solicitor, he might also serve a precautionary section 21 notice.

 

He could also make clear to the tenant - in writing - the point that you are proposing, namely that he is giving the tenant notice without prejudice to his contention that the tenant has already ended the tenancy, by exercising the break clause, and therefore now has no right to remain.

Edited July 12, 2011 by Ed999

[Aequitas]

I think that first of all we have to take section 5(2) as it stands and decide what it means. If we do that I do not think it can be doubted that the effect of the sub-section is that if the tenant exercises a right to break (which must be covered by the phrase "or other action on the part of the tenant") the statutory periodic tenancy does not kick in.

 

I used to puzzled over the meaning of section 5(5) until I saw the light.

 

The section says:

 

(5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy-

 

(a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or

 

(b ) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy,

 

the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b ) above shall be of no effect.

 

The key words are "on or before the date on which a tenancy is entered into or is deemed to have been granted" and "the person who is to be the tenant".

 

Taking out unnecessary words we can rewrite the sub-section as follows:

 

(5) If, on or before the date on which a [statutory periodic] tenancy is deemed to have been granted, the person who is to be the tenant under that [periodic] tenancy does anything which would otherwise have the effect of bringing the [periodic] tenancy to an end the action shall be of no effect.

 

In other words it means only that the tenant cannot do anything to end the periodic tenancy before it begins. The tenant can nevertheless :

 

a. surrender or exercise a right to break to end the fixed term (whilst it is running); or

 

b. surrender or give a notice to quit to end the periodic tenancy (once it is running).

 

I think that has to be the case because otherwise "the surrender, notice to quit or other document referred to in paragraph (b ) above shall be of no effect" means that the tenant cannot serve a valid notice exercising a right to break.

 

Section 1A only applies where a court order has been obtained. Its purpose was to simplify matters by making the tenancy end when the order was executed thereby removing any doubt about when the obligation to pay rent ended.

Edited July 12, 2011 by Aequitas